ORTIZ v. LANZO (2022)

Order (Phaedra F. Perry, J.), entered on February 19, 2021, affirmed, without costs.

Civil Court providently exercised its discretion in declining to vacate plaintiff's default in responding to defendant's motion to dismiss. Plaintiff failed to demonstrate a reasonable excuse for her default (see GEM Invs. Am., LLC v Marquez, 180 AD3d 513 [2020]). Plaintiff's proffered excuse, i.e., that illness prevented her from opposing the motion, was unsupported and unsubstantiated (see Guerre v Trustees of Columbia Univ. in City of NY, 300 AD2d 29 [2002]). Nor did plaintiff set forth any excuse for the more than four year delay in moving to vacate the default (see Maruf v E.B. Mgt. Props., LLC, 181 AD3d 670, 672 [2020]), particularly after having been expressly advised of such remedy by this Court (see Ortiz v Lanzo, 50 Misc 3d 130[A], 2016 NY Slip Op 50004[U] [App Term, 1st Dept 2016]).

Since plaintiff failed to demonstrate a reasonable excuse for her default, which is a necessary precondition to relief under CPLR 5015(a)(1), her motion to vacate must be denied, regardless of whether she demonstrated a potentially meritorious opposition to the motion (see M.R. v 2526 Valentine LLC, 58 AD3d 530 [2009]).

In any event, we note that plaintiff failed to demonstrate a potentially meritorious defense to the dismissal motion (see Karimian v Karlin, 173 AD3d 614 [2019], lv dismissed 35 NY3d 932 [2020]), which was premised upon the record evidence showing that a prior action involving the same subject matter was previously litigated and dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.